Whiston v London Strategic Health Authority
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 07 May 2009 |
| Neutral Citation | [2009] EWHC 956 (QB) |
| Date | 07 May 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ06X03108 |
[2009] EWHC 956 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Eady
Case No: HQ06X03108
Philip Havers QC (instructed by Parlett Kent) for the Claimant
Michael de Navarro QC (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing dates: 16–17 March and 22 April 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady :
The Claimant, Mr Julius Whiston, is now 34 years of age, having been born on 6 September 1974 in Queen Charlotte's Hospital. He is claiming damages in respect of cerebral palsy incurred through hypoxia around the time of his birth, although the claim was first notified by letter on 23 August 2006. The proceedings followed shortly after, on 17 October of that year. Not surprisingly, therefore, there are issues as to limitation which I am required to resolve by way of preliminary issue.
The issues to be addressed are whether the Claimant's relevant knowledge arose after 17 October 2003 and, if not, whether the court should exercise its discretion under s.33 of the Limitation Act 1980 so as to disapply the statutory time limit.
The Claimant's case is that he did not acquire the relevant knowledge until November 2005, when he was 31 years of age. It is suggested that this was the first time his mother (herself a trained midwife) had imparted to him her belief, or at least suspicion, that his cerebral palsy was caused by medical negligence. She told him that a junior doctor (now known to be Mr Breeson) had attempted unsuccessfully to effect a forceps delivery for a period of about half an hour without having resort to a senior member of the team (i.e. Dr Sims, who was a registrar at the time, and who ultimately delivered the Claimant). Until November 2005, it is said, the Claimant had merely thought that his disability arising from the circumstances of his birth was “just one of those things”.
It is now accepted, although it apparently remained in issue until the morning of the trial, that the Claimant was aware that his disability was “significant” (within the meaning of the Limitation Act). What remains in issue is when he acquired knowledge, actual or constructive, that the disability might possibly be attributable to acts or omissions by medical staff at the time of his birth. It is the submission of Mr de Navarro QC, appearing for the Defendant, that the Claimant himself had actual knowledge many years before October 2003, in the light of the evidence placed before the court, and accordingly he relies upon constructive knowledge only as an alternative. If it comes to it, and the court arrives at the stage of exercising the s.33 discretion, he submits that the balance of prejudice lies to the Defendant's disadvantage and the statutory time limit should not be disapplied.
The statutory limitation regime provides that the Claimant's action should not be brought after the expiration of three years from the date of his 18 th birthday, or from his date of relevant knowledge, if later. That is naturally subject to the court's power to disapply in accordance with s.33. Thus, the expiry of the primary limitation period occurred on 6 September 1995 unless the evidence demonstrates that the relevant factors only came to his knowledge at some later date.
There was some debate as to the burden of proof. It seems to be accepted that the burden lies upon the Claimant so far as actual knowledge is concerned. Rather curiously, however, the authorities are less than clear when it comes to the matter of constructive knowledge. Mr de Navarro argues that there is no logical reason, or consideration of public policy, which would justify having the burden of proof placed upon the Defendant in relation to constructive knowledge. My attention was drawn in this context to Nash v Eli Lilly & Co [1993] 1 WLR 782, 796; Crocker v British Coal Corp [1996] 29 BMLR 159, 172–3 and 175; and Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182. I was invited to follow the reasoning of Mance J (as he then was) in Crocker on the basis that the later Court of Appeal decision in Furniss proceeded on a concession on the defendant's part and in the absence of any citation of the other authorities to which I have referred. Although I do not believe it critical to rule on the matter, since the case will not turn upon the burden of proof, I record that I accept for present purposes Mr de Navarro's invitation and will proceed on the assumption that the burden lies upon the Claimant, both in respect of constructive and actual knowledge.
The definition of knowledge for the purposes of ss.11 and 12 of the Limitation Act is to be found in s.14. The relevant date is that on which the person first had knowledge of the following facts: namely, (a) that the injury in question was significant and (b) that it was attributable in whole or in part to the act or omission which is alleged to constitute the negligence or breach of duty relied upon. It is irrelevant whether or not the Claimant knew that any of those acts or omissions did or did not, as a matter of law, involve negligence or breach of duty.
I have recorded the fact that no issue is raised as to the “significance” of the injury. The statutory provision relevant for this purpose is contained in s.14(2), which provides that an injury is significant if the person concerned would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
Constructive knowledge is defined by reference to s.14(3). I am concerned with knowledge that the Claimant might reasonably have been expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek. There is the added gloss that a person is not necessarily to be fixed with knowledge of a fact which is ascertainable only with the help of expert advice – so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
The test is an objective one. I must judge by reference to a reasonable person in the circumstances of this Claimant, with a comparable level of disability, and consider when such a person would have had the curiosity to begin investigating (if necessary with expert help) whether his injury could be considered capable of being attributed to an act or omission of the hospital staff at the time of his birth. It is well settled that personal characteristics, individual to the Claimant, are to be disregarded save in so far as they are directly attributable themselves to the injury in question.
I was invited by Mr Havers QC, appearing on the Claimant's behalf, to have in mind the summary of the principles contained in the recent judgment of Cox J in Khairule v North West Strategic Health Authority [2008] EWHC 1537 (QB) and specifically at [49]–[58]. Although her Ladyship there appears to embrace comparable intellect when identifying the characteristics attaching to the notional reasonable person, it may well be that intellectual ability is a personal quality – to be left out of account when making an objective assessment for the purpose of s.14(3): see e.g. McCoubrey v Ministry of Defence [2007] 1 WLR 1544, 1555 at [50] and [52], per Neuberger LJ. With regard to the Claimant's intellect, it is worthy of note that he has achieved a great deal in life, notwithstanding his disability. He was, for example, a King's Scholar at Eton College and later graduated in mathematics from Pembroke College, Cambridge, where he also obtained a Ph.D.
The marked deterioration in his condition became noticeable in his mid-twenties and he now leads a significantly more restricted life in consequence. As Mr de Navarro points out, however, it is important to have in mind the principle that, if an injury is significant, the fact that the symptoms attributable to it subsequently became worse is irrelevant for present purposes: see e.g. Brooks v J & P Coates (UK) Ltd [1984] 1 All ER 702. The date of knowledge cannot be affected by the fact that the consequences turned out to be more serious than was initially contemplated.
For the purposes of assessing knowledge, Mr Havers submits that the court should focus on the “acts or omissions” as pleaded. In principle, that would appear to be correct. He referred me to the brief particulars of negligence in the present claim, to be found at paragraph 14 of the particulars of claim:
(a) failing to respond adequately or competently to the circumstances which obtained when Dr Breeson attended at 21.10 hours. He was confronted with an obstetric emergency arising from:
(i) delay in labour; labour had progressed well until 13:15 hours but thereafter slowed significantly with only one cm further dilatation between 13:15 and the next vaginal examination at 16:30 hours and only one further cm dilatation between 16:30 hours and next vaginal examination at 20:05 hours.
(ii) fetal distress, in particular Type II (late) decelerations which were indicative of fetal hypoxia.
(iii) a persistent OP position.
(iv) a large baby.
Dr Breeson's proper response should have been to summon the Registrar urgently and to advise the midwives to prepare for an assisted vaginal delivery by the Registrar in which event the Claimant would (and should) have been delivered by 21:20 hours at the latest.
(b) Instead, attempting himself (a...
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